Growing up in Baltimore in the Seventies (you can take the boy out of Baltimore but you can’t take the Orioles out of the boy – go Birds!), I developed a love of horse racing, back in the heyday of Pimlico racetrack and the Preakness. I still remember watching Secretariat run the second leg of the Triple Crown there and the pre-race hype about Seattle Slew a few years later. Horse racing is a lot like lawyering – it has its problems, but it can be a beautiful thing to watch when it’s done right, as it was this past Saturday at the Kentucky Derby.

Among its other virtues, horse racing is a wonderful source of metaphors, and it long ago gave rise to one of lawyering’s most useful sayings: there are horses for courses. I was thinking about that, and the fact that not every horse could have taken Mystik Dan’s remarkable inside run to a win in the Kentucky Derby, while still musing on the summary judgment ruling in Sellers v. Trustees of Boston College, about which I wrote last week.

As has been widely discussed, including by me, Sellers gave rise to a summary judgment ruling that acknowledged the extensive work done by the plan’s fiduciaries to address fee and investment concerns, but found that the work wasn’t enough to warrant a grant of summary judgment in favor of the plan’s fiduciaries. I think it was Nevin Adams who wrote that not all judges would have reached that conclusion, and in this I think he is right. Another judge might have very well granted summary judgment outright to the defendants on the evidence submitted in the summary judgment proceedings, but the judge hearing the action reasonably and defensibly concluded that the record presented just enough of a factual dispute to require trial. This, of course, is where a different horse running this same course might have resulted in a different outcome: another judge might well have found that the defendants had proven a sufficient level of fiduciary due care to justify granting summary judgment for the defendants. To me, this is a question of the philosophy of a given judge, and how much room for interpretation a particular judge thinks Rule 56 grants to the court.

But here’s the rub for me substantively. As I wrote last week, the fairest way to understand the decision seems to be that the evidence presented a scenario in which the defendants should prevail but the standards governing factual issues in summary judgment proceedings appear to preclude entering such an order short of trial. Taking this approach to the breach of fiduciary duty claims in Sellers, however, requires a view of fiduciary duties that is debatable and that I am not convinced the case law requires. In short – and as a number of commentators have noted – the defendants presented extensive evidence in the summary judgment proceedings showing due care in addressing the fee and recordkeeper issues challenged by the plaintiffs. The Court, though, concluded that the expert testimony and evidence proffered by the plaintiffs suggested that it was open to argument whether defendants should have done still more in that regard, and that therefore a fact finder after a trial, rather than a judge at summary judgment, would have to decide whether fiduciary breaches occurred.

The problem with this from where I sit, however, is that it treats fiduciary prudence as infinite, as something that can always be challenged in court as having been insufficient no matter how much was done, and I am not convinced that a proper conception of fiduciary obligations or the case law itself aligns with that view. At some point, a fiduciary has engaged in more than enough prudence to satisfy the statutory obligation, regardless of whether a plaintiff, or his or her expert, can point to more that supposedly could or should have been done. Like almost everything in life, there is always more that could be done, but that alone shouldn’t preclude finding that a fiduciary did, in fact, enough.

It is worth thinking in this regard about how far we have come with regard to fiduciary prudence and the conduct of plan administrators. I have long credited plaintiffs’ lawyers with having raised the bar spectacularly with regard to the care and feeding of participants that is provided by plan fiduciaries. I have long argued that the private attorney general model is both alive in this context and has worked well in improving retirement plan performance and retirement outcomes for participants. We are long past the days when, as a speaker on fiduciary practices, I would warn against what I called the “golf course RFP,” which was basically a plan sponsor giving the contracts for pension and 401(k) plans to a golfing buddy while standing on the 14th green. Today, as opposed to then, I don’t think any serious business executive would ever consider hiring a recordkeeper or another vendor without a full investigation, an RFP or some form of competitive bidding.

To take this a step further, the summary judgment ruling in Sellers recognizes the extensive work actually conducted by the plan’s fiduciaries with regard to recordkeeping and investment selection issues. Several years ago, when I was speaking at an ERISA conference, one speaker, who was in-house counsel to the plan fiduciaries at a large company, explained that the biggest issue he faced was setting the agenda for quarterly meetings of the plan’s fiduciaries, as they would only meet for an hour or two once a quarter. He explained that if the issue was important enough, he would slot it in for 20 minutes on the agenda. I recall thinking at the time what great deposition testimony that would be for plaintiffs’ counsel if his employer were ever sued for breach of fiduciary duty, because how much less fiduciary prudence could there be than limiting the extent of investigation and consideration based simply on the length of time available at a meeting. Now contrast that to the extensive work credited to the fiduciaries in Sellers by the summary judgment ruling: the two courses of conduct have as much in common as a Yankees fan does with a Red Sox fan.

Given this, it is worth noting that the extensive fiduciary prudence that the summary judgment record recognized was engaged in by the fiduciaries in Sellers might be more than was required of the fiduciaries, even if, as the plaintiffs in that case claim, there was still more that could have been done. If so, then it would have been both fair and legally appropriate to hold that summary judgment, despite the factual issues asserted by the plaintiffs, could and should be granted to the defendants. Summary judgment is only barred by a genuine issue of material fact, not by any dispute of fact. If the Court in Sellers were to have held, as I believe the law could allow, that the fiduciaries had been required to reach a certain level of prudence but not to satisfy an infinite one, the Court could have also reasonably held that the fiduciaries in Sellers, on the record set out in the summary judgment ruling, had reached and passed that level, rendering the factual disputes raised by the plaintiffs immaterial and justifying the entry of summary judgment in favor of the defendants – and all of this without changing the facts presented by all sides even one bit, and by instead just recognizing that at some point, a fiduciary exceeds the level of care that he or she is legally obligated to render.

And thus the real question raised for me by the otherwise substantively excellent summary judgment opinion in Sellers is this: does the law really require an almost infinite possible level of care by ERISA plan fiduciaries to an extent that only a fact finder, after hearing every bit of evidence at trial, can determine what the required level of care is? Or does it demand only a certain level of care, one that is sufficiently quantifiable that a court, passing on it on summary judgment, can declare whether or not it was reached? I would suggest that if it is the former, and not the latter, it may be time to reexamine the question.